The plaintiff has taken exception to the report on two grounds. First, she argues that the ALJ overlooked a pertinent statute governing the key issue in this matter, namely, what evidentiary standards should be used to determine if her child was the result of the union between Floyd Briggs ("wage earner") and herself. Second, plaintiff contends that the magistrate was in error in not finding that the evidence presented was "clear and convincing" to show that the deceased wage earner fathered her child.

A. The Law

In reviewing the Secretary's decision, a district court should uphold a final determination of the Secretary to deny benefits if the findings of fact upon which the decision was based is supported by substantial evidence. Kent v. Schweiker, supra. Substantial evidence has been defined as "such relevant evidence as a reasoning mind might accept as adequate to support a conclusion." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). The Social Security Act provides for insurance benefits to be paid to the children of a deceased "insured individual". 42 U.S.C. § 402(d)(1). The act further defines who is the child of the "insured individual". In this instance, since the child was born out-of-wedlock, the act directs the Secretary to examine the state law that would be applied to determine the devolution of intestate personal property by the courts of the state in which the deceased wage earner was domiciled at the time of his death. Mr. Briggs was domiciled in Pennsylvania. The Pennsylvania intestate law, 20 Pa. C.S.A. § 2107(c)(1)-(c)(3), prescribes three ways a person born out-of-wedlock may prove the identity of his father.

(c) Child of father - For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways: . . .

(1) If the parents of a child born out of wedlock shall have married each other.

(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

20 Pa.C.S.A. § 2107.

Subsection (c)(1) is inapplicable to the facts at hand. The Secretary found that the plaintiff failed to present evidence that would satisfy the requirement of subsection (c)(2). Specifically, it was determined that (1) Floyd Briggs did not openly hold the child out to be his own within the community-at-large and (2) that Floyd Briggs did not provide support for the child.

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